Citation Nr: 1429227
Decision Date: 06/27/14 Archive Date: 07/03/14
DOCKET NO. 08-05 532 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts
THE ISSUES
1. Entitlement to a compensable evaluation for residuals of a right ankle sprain, prior to August 26, 2011.
2. Entitlement to rating higher than 10 percent for residuals of a right ankle sprain from August 26, 2011.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Taylor, Counsel
INTRODUCTION
The Veteran served on active duty from October 1995 to October 1999.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to an increased evaluation for the service-connected right ankle disability.
The Veteran requested a hearing before a member of the Board. He was notified of his scheduled November 2010 hearing by letter in September 2010, but did not attend the hearing or subsequently request a new hearing. His hearing request is deemed withdrawn.
In August 2011, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998).
In a June 2012 rating decision, the evaluation for right ankle sprain was increased to 10 percent, from August 26, 2011. Since the grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993).
The issues have been recharacterized to comport with the evidence.
FINDINGS OF FACT
1. Prior to August 26, 2011, residuals of a right ankle sprain more closely approximate marked limitation of motion.
2. Since August 26, 2011, residuals of a right ankle sprain more closely approximate marked limitation of motion.
CONCLUSIONS OF LAW
1. The criteria for a 20 percent rating, and no higher, prior to August 6, 2011, for residuals of a right ankle sprain are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & West Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.17a, Diagnostic Code 5271 (2013).
2. The criteria for a 20 percent rating, and no higher, since August 6, 2011, for residuals of a right ankle sprain are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & West Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.17a, Diagnostic Code 5271 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Notice and Assistance
Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.
Letters in February 2006 and December 2006 satisfied the duty to notify provisions. These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. The claim was subsequently readjudicated, most recently in a June 2012 supplemental statement of the case and rating decision.
The Veteran's service treatment records and VA medical treatment record have been obtained. The Veteran did not identify any private treatment records pertinent to the appeal. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. VA examinations were conducted in April 2006 and August 2011; the record does not reflect that these examinations were inadequate for rating purposes. The rationale provided for the August 2011 VA opinion is based on objective findings reliable principles, and sound reasoning.
There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.
Analysis
The Veteran's residuals of a right ankle sprain are rated as 0 percent disabling prior to August 26, 2011, and 10 percent thereafter, under Diagnostic Code 5271. He asserts higher ratings are warranted during the appeal.
Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.
The August 2011 VA examination report reflects residuals of a right ankle sprain are manifested by right ankle plantar flexion to 15 degrees, with additional functional loss after repetitive use. The finding reflects less than half of what is considered normal ankle plantar flexion, which is 45 degrees. See 38 C.F.R. § 4.71a, Plate II. In addition, localized tenderness or pain on palpation of the right ankle joint, as well as laxity of the right ankle on talar tilt test (inversion/eversion stress) was reported.
Although the April 2006 VA examination report reflects moderate impairment of the right ankle, plantar flexion with 20 degrees eversion was reported. X-ray examination of the right ankle in both August 2011 and April 2006 showed degenerative changes. The Board finds that the degree of impairment due to residuals of a right ankle sprain more closely approximates to the criteria for a 20 percent rating for the entire appeal period.
A 20 percent rating is the maximum under Diagnostic Code 5271. A rating higher than 20 percent for residuals of a right ankle sprain is not warranted at any time during the appeal.
Although the Veteran has been diagnosed with right ankle degenerative joint disease, he is not entitled to a separate or increased rating under Diagnostic Code 5010 because the Veteran is in receipt of a compensable rating under a diagnostic code predicated upon limitation of motion (Diagnostic Code 5271). There is no evidence of ankylosis , and thus a higher rating under Diagnostic Code 5270 is not warranted.
Although the August 2011 VA examination report reflects that right ankle pain may interfere with work during the Veteran's job that requires prolonged standing, walking or running, the 20 percent evaluation granted in this decision throughout the appeal contemplates loss of time due to exacerbations of the right ankle disability, if any. 38 C.F.R. § 4.1 (2013).
The Veteran is competent to report his symptoms. In reaching a determination, the Board has accorded greater probative value to the medical opinions. The rationale provided for the August 2011 opinion is based on objective findings, reliable principles, and sound reasoning.
The Veteran's service-connected residuals of a right ankle sprain result in limitation of motion and pain. The rating criteria reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule; the assigned schedular evaluation for the service-connected residuals of a right ankle sprain is adequate; and referral for extraschedular consideration is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1).
The evidence supports a 20 percent rating throughout the appeal, and no higher. A 20 percent rating for residuals of a right ankle sprain throughout the appeal is warranted.
ORDER
Prior to August 26, 2011, a 20 percent rating for residuals of a right ankle sprain is granted.
Since August 26, 2011, a 20 percent rating for residuals of a right ankle sprain is granted.
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RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs